[2001] KEHC 762 (KLR)
The court held that Order LIII Rule 3(1) of the Civil Procedure Rules, which requires that an application for an order of prohibition be filed within 21 days of the grant of leave, is mandatory and not ultra vires section 9(1) of the Law Reform Act. The applicant failed to file the application within the prescribed...
Source-derived case information.
- Citation
- [2001] KEHC 762 (KLR)
- Parties
- Applicant: The Co-operative Bank of Kenya & Others; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1282 of ??
- Procedural Posture
- Miscellaneous Application / Preliminary Objection Ruling
- Outcome
- application struck out as incompetent
- Judges
- AM Githinji
- Legal Topics
- Judicial Review, Order of Prohibition, Limitation Periods, Leave to Apply
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Co-operative Bank of Kenya & Others
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Preliminary Objection Ruling
Legal Issues
- 1 Whether the application for order of prohibition was filed within the mandatory 21-day period after leave was granted.
- 2 Whether Order LIII Rule 3(1) of the Civil Procedure Rules is ultra vires section 9(1) of the Law Reform Act.
Ratio Decidendi
The court held that Order LIII Rule 3(1) of the Civil Procedure Rules, which requires that an application for an order of prohibition be filed within 21 days of the grant of leave, is mandatory and not ultra vires section 9(1) of the Law Reform Act. The applicant failed to file the application within the prescribed period and did not seek an extension of time before filing. As a result, the application was filed out of time and was therefore incompetent. The court struck out the application with costs to the respondent.
Court Disposition
application struck out as incompetent
Orders
- The Notice of Motion dated 19.2.2001 is struck out for being filed out of time.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISC CIVIL APPLICATION NO. 1282 OF 2000
THE CO-OPERATIVE BAKN OF KENYA & OTHERS……………………………………………..…PLAINTIFF VERSUS REPUBLIC……………………………………………….DEFENDANT
RULING
This is a preliminary objection to the Notice of Motion dated 19. 2.2001 for order of prohibition on the ground that the Notice of Motion was filed over 21 days after court granted leave to file the application to apply for Order of Prohibition.
Leave to apply for order of prohibition was granted on 1. 12. 2000. The application for order of prohibition was filed on 19. 2.2001. By Order LIII Rule 3(1) CP Rules, the application for order of prohibition should be made within 21 days from date of grant of leave. Section 9(1) of the Law Reform Act gives power to make Rules of the court. Specifies the matters which can be covered by the Rules of the court. But as section 9(1) clearly states the Rules of the court which can be made are not limited to the specified matter. The specified matters which can be prescribed by the Rules of the court are only part of the matters which the Rules can provide for. I am satisfied that Rule 3(1) of Order LIII is not ultra vires S. 9(1) of the law Reform Act and that the limitation period of 21 days which is mandatory applies.
There was no application made to extend time before the application was filed.
Consequently, I am satisfied that the application dated 19. 2.2001 was filed outside the period prescribed by Rule 3(1) of Order LIII. It is struck out with costs to the Respondent.
E. M. Githinji
Judge
14. 3.2001
Mr. Wamalwa present Mr. Omwega present Mr. Manjaja present